Worthington-Eyre v Police No. Scgrg-98-1164 Judgment No. S6974
[1998] SASC 6974
•26 November 1998
WORTHINGTON-EYRE v POLICE
[1998] SASC 6974
Magistrates Appeal
MILLHOUSE J. Appeal by a prisoner against a sentence imposed in the Magistrates Court at Holden Hill.
The appellant eventually pleaded guilty to 22 counts of false pretences pursuant to s195 of the Criminal Law Consolidation Act. He asked that 60 similar counts be taken into consideration. The learned sentencing magistrate gave him, in all, six and a half years with a non-parole period of four years. The appellant argues that this sentence is manifestly excessive.
The offending itself and the proceedings arising from it have been long and complex.
In the early 90s the appellant and his mother, Mrs Helen Worthington-Eyre, were crash repairers trading through a company Eyreville Motors Pty Ltd but several business names were used. The business became too big and got into financial difficulties.
Mr and Mrs Fred Steiner were in partnership trading as Metro Factors & Co. Mr Steiner for many years ran a business selling electronic equipment. At about age 60 he sold that business. With the proceeds he and his wife started Metro Factors. The purpose of this venture was to factor debts due to crash repair businesses. As I understand it, Metro Factors bought the debts (arising from charges for repairs to motor vehicles) owing to the crash repairer for 97 per cent of their face value and then collected the debts: the three per cent was their return.
When Eyreville Motors got into financial difficulties, the appellant and his mother began raising bills before work on the vehicles was finished. Later they raised bills for fictitious work. They pretended to have done work on vehicles which did not exist. They factored these bills to Metro Factors and were paid.
The process of the frauds was complicated and I need not go into it. Suffice it to say, it was a deliberate, bare-faced deception of Mr and Mrs Steiner over about 12 months, between September 1991 and September 1992. The total of which the Steiners were defrauded was more than $524,000 ($13,000 was later repaid).
In February 1995 the appellant was arrested and charged with 148 counts of false pretences. He was released on bail. He then started again on the same course of conduct (it was in June and July 1995) but this time with two different victims. I am not sure of the total amount defrauded this time but it was much less than the frauds relating to Metro Factors.
Eventually Eyreville Motors crashed and the appellant went bankrupt. Both he and his mother were charged. The charges were to be heard by a magistrate but the trial was delayed for plea bargaining. Eventually the appellant agreed to plead guilty to a number of the charges but those against his mother were dropped. The learned magistrate then thought that the offending was so serious it should be dealt with in the District Court. Once in the District Court the appellant applied to change his plea. The application was refused. He then applied to this Court for judicial review. Olsson J refused that application, found that the matter had never lawfully been before the District Court and remitted the whole thing to the learned magistrate, Worthington-Eyre v District Court (SA) & SA Police (Judgment No. S6307, 11 August 1997). The appellant then tried again to change his plea but the learned magistrate refused that application too. Eventually he sentenced the appellant on 4 August this year. On 19 of the original 22 counts, he sentenced the appellant to four years and six months: on the other three counts, another two years. A non-parole period of four years was set.
I have read the various Victim Impact Statements. The appellant's actions have caused great upset, distress and financial loss to those defrauded. Mr Fred Steiner who has been through World War II in Europe, having been ill-used by the Gestapo, was greatly affected by the thought of having to give evidence. The attempts of the appellant to change his plea of guilty meant that the fear of having to come to court hung over Mr Steiner for several years. All this the learned magistrate rightly took into account.
Mr Peter Waye argued the case for the appellant. He, Mr Simon Smart for the respondent Police and I discussed a number of previous cases, roughly comparable. Among them The Queen v Hunter (1984) 36 SASR 101. The late Mr Brian Oswald Hunter was charged and convicted of 19 counts of fraudulent conversion: a further 182 counts of conversion were taken into account. The offences were committed over a nine year period. The total defrauded was $738,472. On appeal the head sentence was fixed at seven years with a non-parole period of three and a half years. The respondent was seventy-four at the time of sentence. This influenced the Court (@ 106, per King CJ):-
"Tragic as the respondent's situation is in many respects, I therefore concur in holding that the appeal should be allowed and the non-parole period increased to three and a half years. It cannot in my opinion be reasonably or seriously suggested that a sentence of imprisonment for five years with a non-parole period - itself subject to remissions - of three and a half years fails to reflect the mercy to which the respondent is clearly entitled by reason of his age, but only by reason of his age."
By comparison Mr Waye submitted that his client has been treated too severely. I do not think it follows. This appellant is 42 years old, some 32 years younger than Mr Hunter.
Mr Waye also argued that the magistrate was wrong not to have given credit to his client for his plea of guilty. Mr Smart pointed out that once his mother's charges had been dropped, the appellant had done his best to change his plea of guilty and to fight the charges. I accept that the learned magistrate was quite justified, in his discretion, in not giving any credit for the plea of guilty. Credit is given as an inducement to a person charged to save victims the need to give evidence and to save the community the time and expense of a trial. In this case the victims were kept in suspense for years as to whether they would have to give evidence. The cost of the various proceedings, in the District Court and in this Court, must have been quite high.
Mr Waye pointed to his client's lack of convictions and previous good character, a good family man and so on. Perhaps, but this was a series of deliberate, calculated frauds over two periods, 12 months the first time and two months the second. That does much to negate consideration of previous good character.
Mr Waye did his best to minimise the significance of the fact that the second series of offences, in 1995, were committed when the appellant was on bail. He argued that the penalty, two years imprisonment, for these should not have been made cumulative on the four and a half years for the offending in 1991/1992. I cannot accept that either. To offend again in the same way when on bail is a very serious thing. The learned magistrate was correct to accumulate the sentences of imprisonment.
The last of Mr Waye's arguments which I shall especially mention is that crimes of this kind are rare. There may never have been before in South Australia a prosecution for defrauding a factoring agent. He argued that general deterrence is less of a consideration than with prevalent crimes. Mr Smart replied that frauds take various forms and fraud is prevalent. I add that opportunities for this sort of conduct obviously exist and people should be deterred from indulging in it.
I have thought about all the points which Mr Waye so persuasively made but, despite them, I think the magistrate, in the light of the offending and the appellant's circumstances, did not impose a penalty manifestly excessive.
The appeal is dismissed.